# Respondents Brief — Waller v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0321%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1984 - **Citation:** 467 U.S. 39 ## Text «Supreme Court, U.S FILED Nos, 83-321 & 83-322 FEB 22 j094 ALLA YF IN THE % Supreme Court of the United States OCTOBER TERM, 1983 GUY WALLER, Petitioner, STATE OF GEORGLA, Reavondent. CLARENCE COLE, é¢ ai., Petitioner v. STATE OF GEORGIA, : ésponaen ON WRITS OF CERTIORARI TO THE SUPREME COURT OF GEORGIA BRIEF FOR RESPONDENT Mary Beto WESTMORELAND Assistant Attorney General Counsel of Record for Respondent Micuakz. J. Bowrnrs Attorney General James P. Gooce, JR. Executive Assistant Attorney Genera] Manrrox 0, Gorpox First Assistant Attorney General WriuiaM B. Hitt, Je. Senior Assistant Attorney General Lewis R. Staton 182 State Judicial : wer 40 Capitol Square, §.W. District Attorney Atlanta, 808384 4H. Attew~ More (404) ieonal Assistant District Attorney QUESTIONS PRESENTED 1 Did the trial court properly order the courtroom to be closed during the hearing on the motion to suppress based upon provisions of the Georgia statutes on elec- tronic surveillance? 2. Did the Supreme Court of Georgia properly conclude that O.C.G.A. § 16-14-7(f) is constitutional on its face? 3. Did the Supreme Court of Georgia properly conclude that there was no requirement that all material seized in the search in question be suppressed? TABLE OF CONTENTS Page QUESTIONS PRESENTED.................-.65 i CUPTRR IGE OI 65 65 cin dies Seco c needs cusssves 1 Pi bs ee oN ee peat Penk eee Prey oe 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED..................:- 2 STATEMENT OF THE CASE................... 2 SUMMARY OF THE ARGUMENT.............. 6 PRASURREOE SE olin VaR Rew eOKse nee be coekipper 7 I, THE TRIAL COURT PROPERLY CLOSED THE COURTROOM DURING THE HEAR- ING ON THE MOTION TO SUPPRESS PRIOR TO TRIAL, «6.0: ciesceciescccvsis. 7 I. THE SUPREME COURT OF GEORGIA PROPERLY CONCLUDED THAT 0.C.G.A. § 16-14-7(f) DOES NOT VIOLATE THE TH AMENDMENT TO THE UNITED STATES CONSTITU- TION AND PROPERLY CONCLUDED THAT THERE IS NO UIREMENT THAT ALL EVIDENCE BE SUPPRESSED: 20... cccceccesdiccccccoses 21 \ CONCIAIBION 5.0 ccc ccsccsevescscccvemcescceeis 32 CERTIFICATE OF SERVICE...............+-+. 33 8 a 7 | TABLE OF AUTHORITIES Page(s) Cases cited: Aaron v. Capps, 507 F.2d 685 (5th Cir. 1975)....... 14 Andresen v. Maryland, 427 U.S. 463 (1976)......... 29 Boyd v. LeFevre, 519 F.Supp. 629 (E.D.N.Y. 1981) .12, 15 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974)... 0. ccc ccc ec eee eee 26 Carroll v. United States, 267 U.S. 132 (1925)......... 26 Castillo v. Harris, 491 F.Supp. 33 (8.D. N.Y. 1980)... 15 Chambers v. Maroney, 399 U.S. 42 (1970)........... 26 Chimel v. California, 395 U.S. 752 (1969)......... 23, 26 Coolidge v. New Hampshire, 403 U.S. 443 (1971)..... 25 Douglas v. Wainwright, 521 F.Supp. 790 CED; Wie Bs bs etn bi pee wR neu pvieeee’s poker 13 Douglas v. Wainwright, 714 F.2d 1532 CRRA GI, DNs yd og pu aesibs coed bl abecec ls hea os 14 Estes v. Texas, 381 U.S. 532 (1965)... ............. 10 Gannett Co. v. DePasquale, 443 U.S. 368 (1979)..... 11, 13 Gelbard v. United States, 408 U.S. 41 (1972)...4..... 16 Kansas City Star, In re Application of, 666 F.2d 1168 (8th Cir. 1981)................. 16, 18 Lacaze v. United States, 391 F.2d 516 (5th Cir. 1968).. 12 Lowe v. State, 141 Ga. App. 433, 233 8.E.2d 807: OPP) Sco Spe see sek Ce. 20 Nebraska Press Ass'n. v. Stuart, 427 U.S. 539 (1976)... 16 New York v. Belton, 453 U.S. 454 (1981)............ 26 Oliver, In Re, 383 U.S. 257 (1948)................. 11 * . ye Pap ary’ ts er Bin a4 i vy ee ‘ iy 2 ae ge ee eae PR Py OMT RIPE TE ge Pears Ee : TABLE OF AUTHORITIES (Continued) Page(s) Cases cited (Continued): Payton v. New York, 445 U.S. 573 (1980)...... 23, 24, 25 Press-Enterprise Co. v. Superior Court, 34 Cr.L. 3019, decided January 18, 1984............ res Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)... eee cece eee e eee 12, 16 Russello v. United States, __._ U.S. —__., a Ce nck 6 v0 Shue 0.0 45:64 c0 owe evees 31 Snyder v. Massachusetts, 291 U.S. 97 (1934)......... 14 Stanford v. Texas, 379 U.S. 476 (1965)......:.... 27, 28 Tezas v. Brown, ___. U.S. ____, 103 8.Ct. 1535 CE Cale <.e'v6 6 tae Coe sib eh cert Lcetves RAR 24, 25 United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969)..............44.. 11, 14 United States ex rel. Bruno v. Herold, . 868 F.2d 187 (2d Cir. 1966)... 22... eee eee ee eee 12 United States v. Bell, 464 F.2d 667 (2d Cir. 1972).... 14 United States v. Cianfrani, 573 F.2d 835 (8d Cir, 1978)........0...eeeees were 13, 16, 17, 18 United States v. Clark, 475 F.2d 240 (2d Cir. 1973)... 11 United States v. Dorfman, 690 F.2d 1230 CT ihe CE AOI oi ok ss Ship SEVER ERE Sn ve POD 18 United States v. Geise, 158 F.Supp. 821 CAD: GI DOs is oss ac as ccRdha cece csc'y cog en 14 United States v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981)............. Luce aes bac Ole 29, 30 United States v. Hernandez, 608 F.2d 741 (9th Cir. 1979)............0.000..- pe seeeeceees 15 iv ween” | See x ‘ 4 i OB ke coe 7 a, Sys 7 kj lial eh ae Pe ts ow AS panty ty p, . + 7, ve > x are Fas! We TS ee Tt Z TABLE OF AUTHORITIES (Continued) P ge(s) Cases cited (Continued) : United States v. Wuagneuz, 683 F.2d 1343 (11th Cir. 1982)..... eke bvbkaPaatdcacareses 29, 30 | Waller v. State, 251 Ga. 124, 303 S.E.2d 437 NG i Bec ce Riiree bs 0 en ble bie 5, 10, 20, 22, 30 Warden v. Hayden, 387 U.S. 294 (1967)....... 23, 24, 26 Western Business Systems, Inc. v. Slaton, 492 F.Supp. 513 (N.D. Ga. 1980)....... 23, 24, 30, 31 Statutes: ele ee ES? TN Se 2, 3, 8, 9, 19 Re Oe oe coca nck coe b kas 31 es ee buN a ud See bite 2, 23 O.C.G.A. § 16-14-77)... cee cence i, 2, 5, 6, 21, 22 PR k OS es. eink, sausewaee 31 SS I ao civnccis isis kaecewaxt 2 Title III Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510, ef. seg.......... 16, 17, 18, 19 Constitutional Provisions: pS PT nT oP ee E 2, 12, 16 Fourth AmiemGMeRs,. . 0.0566 ccccvcccscucccces passim oe ee re ere 2, 5, 7, 10, 12 Pe a ids oo Ue bb0'd <0 nt cha ca ennod 2 Other Authorities: 3 W. Blackstone, Commentaries * 372.............. 13 Evidence in Trials at Common Law . (Chadbourne Rev. 1976)................. 13 Nos. 83-321 & 83-322 IN THE Supreme Court of the United States OCTOBER TERM, 1983 GUY WALLER, Petitioner, v. STATE OF GEORGIA, Respondent. CLARENCE COLE, et al., Petitioners, v. STATE OF GEORGIA, Respondent. ON WRITS OF CERTIORARI TO THE SUPREME COURT OF GEORGIA BRIEF FOR RESPONDENT Pursuant to Rule 34 of the Rules of this Court, the Respondent in Nos. 83-321 and 83-322 respectfully sub- mits this joint brief. OPINION BELOW The opinion of the Supreme Court of Georgia is report- ed at 251 Ga. 124, 308 8.E.2d 487 and appears as Appen- dix A of the joint appendix. 1 2 JURISDICTION The jurisdiction of this Court rests upon 28 U.S.C. § 1257(3). The judgment of the Supreme Court of Geor- gia was entered on June 1, 1983. Petitioners filed timely petitions for writs of certiorari which were granted on November 7, 1983. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves the First, Fourth, Sixth and Four- teenth Amendments to the Constitution of the United States which are set forth in the joint appendix. This case’also involves O.C.G.A. §§ 16-11-64(b)(8) and 16-14- 7(a) and (f) which are set out in the joint appendix. STATEMENT OF THE CASE On February 9; 1982, the grand jury of Fulton County indicted the Petitioners in the two instant cases as well as numerous others on charges of violation of the Georgia Racketeer Influenced and Corrupt Organizations Act. All of the defendants entered pleas of not guilty to the charges. On June 21, 1982, a trial commenced on the charges against the Petitioners and other defendants. At the con- clusion of that trial, the Petitioners in the instant cases were found guilty of commercial gambling and communi- cating gambling information. Petitioner Eula Burke was sentenced to five years probation, and a $10,000 fine on 3 Cole was sentenced to five years with three years to serve and also received a twelve month probated sen- tence on a separate charge. Petitioner Thompson was sentenced to five years with two years to serve and a $10,000 fine, as well as a twelve month probated sentence on a separate charge. Petitioner Waller was sentenced to five years with three years to serve and the balance on probation and a $20,000 fine with a twelve month pro- bated sentence being imposed on a separate charge. (R. 200, 207-8). The facts of the case as presented at trial show that between June, 1981 and January, 1982, the Petitioners and others participated in a gambling organization which conducted a lottery based on the daily stock and bond volume on the New York Stock Exchange. This lottery was conducted in the metropolitan Atlanta area. Gam- bling information was transmitted by electronic means and stored in a microcomputer maintained by Petitioner Clarence Cole. Prior to trial Petitioners filed a motion to suppress evi- dence based on searches that were conducted prior to the indictments. On June 14, 1982, the state filed a motion to close the hearings on the motion to suppress. The state asserted that the hearing was going to involve evidence of a sensitive nature and that the litigation on the motion would of necessity involve the introduction of evidence which would affect individuals not on trial at that time and individuals not indicted at that time. A portion of the information which would be disclosed involved cer- tain evidence obtained through the use of electronic sur- veillance. The state sought to close the hearing based on the prohibition on publication of wiretap evidence set forth in O.C.G.A. § 16-11-64(b)(8). In order to allow the 4 at da 4 state to utilize the same information in subsequent prose- cutions against other individuals and to protect the pri- vacy rights of those not on trial, the state sought to close the motion hearings. The trial court concluded that if the evidence was going to be offered at the trial of other offenders, the presentation of the evidence at the hearing on the motion to suppress in the instant cases would amount to publication and would taint the evidence under the Georgia statute. (S8.T. 6-8). When the requests were made, Attorney Charles Smith, counsel for Petitioner Clarence Cole and other defen- dants, agreed with the observation made by the state and concurred with the request, insofar as the request extended only to the hearings on the motion to suppress.' Attorney Herbert Shafer, representing the remainder of the defendants at that time, opposed the closure motion and asserted that he would insist on the right to an open trial. (S.T. 11). The trial court granted the motion to close the pro- ceedings only as to the hearing on the motion to suppress. Attorney Shafer sought to have certain individuals re- main in the courtroom, but the trial court ruled that the statute was very specific, “‘[aJnd I think that means every- body must go except the defendants, counsel, necessary witnesses of course who appear, and the officers of the court.” (8.T. 14). Attorney Smith interposed an objec- tion to Attorney Shafer’s wife remaining in the court- room, although the state did not oppose such request. The trial court then granted the motion to close the pro- ceedings and excluded all individuals except those previ- ously enumerated by the court. en ay sy Hin would urge that Petitioner Cole is from aR nei tone 5 After the trial and convictions, the Petitioners filed a direct appeal to the Supreme Court of Georgia raising numerous allegations. In particular, the Petitioners chal- lenged the closure of the courtroom and the constitu- tionality of O.C.G.A. § 16-14-7(f). That court affirmed the convictions and sentences, in particular, concluding that the code section being challenged was constitutional on its face and did not violate the Fourth Amendment. The court also concluded that there was no requirement that the evidence that had been lawfully seized be sup- pressed. The court concluded that the Sixth Amendment right to a public trial was not violated by the closure of the courtroom, noting that the trial court exercised its inherent power to preserve order in the courtroom, to protect the rights of parties and witnesses and to further the administration of justice. Waller v. State, 251 Ga. 124, — 303 8.E.2d 437, 441 (1983). The motion for rehearing was denied by that court on June 18, 1983. Petitioner then filed two separate petitions for writs of certiorari in this Court requesting that this Court review the decision by the Supreme Court of Georgia. On November 7, 1983, this Court granted the petitions for writs of certiorari and consolidated the two cases. ! | F ; ’ 4 } os needs eis ve ") ; , ‘ ip), ere ee Fe Wil eee ome y WO, Tae, A ary, Me ie ee AD oh - or" ' i Pp nid 6 SUMMARY OF THE ARGUMENT Under the facts of the instant case, the trial court’s closure of the courtroom during the hearing on the motion to suppress did not violate Petitioners’ right to a public trial. The closure was limited solely to the motion to suppress hearing which is a pretrial proceeding and not a part of the actual trial itself and specifically did not apply the ruling to the jury trial portion of the proceed- | ings. The state had compelling interests, which were jus- tifiable under the circumstances, in having the courtroom closed based on the statutory requirement that evidence obtained as a result of electronic surveillance not be sub- ject to publication. In order to allow the state to seek subsequent prosecutions or indictments, it was necessary to close the courtroom to prevent a possible publication of such material. Such closure also served to protect the privacy rights of those individuals not then on trial or not under indictment at the time of the hearing. The trial court was within its authority to preserve order and decorum in the courtroom and to protect the rights of the parties involved in the case. Thus, the right of the Petitioners to a public trial was properly balanced against the state’s overriding concerns regarding the wiretap evi- dence. Furthermore, closure was properly limited so that only the motion to suppress hearing was closed. There- fore, the instant closure did not constitute a violation, of the right to a public trial. The provisions of O.C.G.A. § 16-14-7(f) do not violate the Fourth Amendment to the United States Constitu- tion. The statutory provision provides for forfeiture under certain circumstances, The statute provides for restric- tions which brings the statute within the parameters of the Fourth Amendment by requiring that the seizure be_ 7 made pursuant to a lawful arrest, search or inspection and also by requiring that the law enforcement officer have probable cause to believe that the property in ques- tion is subject to forfeiture. Thus, by definition the stat- ute complies with the Fourth Amendment. There was no requirement that the evidence not sup- pressed be excluded at the time ‘of trial. The search in question was not a general search' as suggested by the Petitioners, but was made pursuant to valid statutory procedures and a valid warrant. The mere fact that offi- cers may have seized evidence which was subsequently returned to the Petitioners does not render the entire search and all evidence seized pursuant to that search inadmissible and subject to the exclusionary rule. No such wholesale application of the exclusionary rule should be made in instances in which officers act pursuant to valid warrants. ARGUMENT I. THE TRIAL COURT PROPERLY CLOSED THE COURTROOM DURING THE HEARING ON THE MOTION TO SUPPRESS PRIOR TO TRIAL. The first issue presented for review by this Court is a challenge by the Petitioners to the trial court’s closure of the courtroom during the hearing on the motion to sup- press. Petitioners have asserted that the closure by the trial court violated their right to a public trial under the Sixth Amendment to the United States Constitution. At the beginning of the hearing on the motion to sup- press, the state reasserted the former motion previously made for closure, stating that it would be necessary dur- ing the hearing on the motion to utilize evidence which 8 could involve a reasonable expectation of privacy on the part of persons who were not presently on trial. The motion was specifically made based on the provisions of 0.C.G.A. § 16-11-64(b)(8) concerning publication of wiretap information and subsequent use of that informa- tion in other prosecutions. That code section specifically provides the following: Any publication of the information or evidence ob- tained under a warrant issued hereunder other than that necessary and essential to the preparation of and actual prosecution for the crime specified in the warrant shall be an unlawful invasion of privacy under this part and shall cause such evidence and information to be inadmissible in any criminal pro- secution. Id. The state asserted that the evidence to be presented could affect persons other than the defendants on trial and could involve some persons who had not even been indicted. The trial court concluded that the presentation of such evidence would amount to publication under the statute. Attorney Smith, representing Petitioner Clarence Cole concurred with the request insofar as it extended to the motion to suppress. Attorney Shafer opposed the motion, particularly stating that he felt that there had already been unnecessary publication of the material. The court concluded that the actual trial of the case would present a different set of circumstances, but as the request was only to the motion hearing, it would be granted. Attorney Shafer requested that other persons be allowed to remain in the courtroom to assist him, to which Attorney Smith interposed an objection. The court ruled that the court- room would be closed during the hearing on the motion to suppress so as to exclude all others except’ witnesses, et Msc etl) SN UES. lr Lee ee a Me ene 9 necessary court personnel, the parties and their lawyers. (S.T. 12). The testimony at the hearing on the motion to suppress focused on the electronic surveillance that was conducted. Various persons testified concerning the obtaining of the warrants to conduct the electronic surveillance and various officers testified concerning the procedures that were utilized when monitoring telephone calls. Certain tapes of telephone calls that were obtained by way of wiretaps were played at the hearing on the motion to suppress. On direct appeal, the Supreme Court of Georgia con- sidered the allegations challenging the closing of the courtroom. The court concluded the following: In the hearing here, information was revealed which was potentially harmful to others, would tend to vio- late ee of others, and might prejudice other potential defendants. Under these circumstances, the court balanced [Petitioners’] rights to a public hearing on the motion against the privacy rights of others and closed the hearing. The court exercised its inherent power “. . . to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administra- tion of justice.”’ Lowe v. State, 141 Ga. App. 433, 435, 233 S.E.2d 807 (1977). We find that [Petitioners’] Sixth Amendment right to a public trial was not vio- lated. There is some question whether state or federal law would have required that the wiretap informa- tion be revealed in a closed courtroom. OCGA 16-11-64(b)(8) (Code Ann. § 26-3004) ; 18 U.S.C.A. 2517. We need not reach this question since the pater ppg a name iageliie, cement. er meaty eet Baga lel | Kon einen ti ‘age Corp. v. Lumpkin, supra. This argument has no merit si i question occurred before since the hearing in 10 that case was decided and before the procedural requirements set forth took effect. Waller v. State, supra, 303 8.E.2d at 441. The Sixth Amendment to the United States Constitu- tion provides for an accused’s right to a public trial. This right has been construed by numerous courts on many occasions. This Court has stated the following: Essentially, the public trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings (cite omitted). A fair trial is the objective, and “public trial’’ is an institutional safeguard for obtaining it. Thus, the right of ‘‘public trial” is not one belonging to the public, but one peaens to the accused, and inhering in the institutional process by which justice is administered. Obviously, the public-trial guarantee is not violated if an individual member of the public cannot gain admittance to a courtroom because there are not available seats. a _—— will already have been met, for the “ will be present in the form of those persons w aid gain admission. Even the actual